DNA Evidence Discussed and Paternity Test Aids Court in Challenged Will

Barnes Estate v. Barnes [2013] B.C.J. No. 2224 

An application was brought by Eric Barnes, the grandson of the testatrix, to declare that the children of his uncle were not his biological children.  According to the will, the residue of the estate was to be divided equally among the testarix's sons, or their issue if they were to predecease her.  As both sons had predeceased her, Eric sought to declare that his uncle's children were not biological, and therefore not entitled under the will.  

Detailed evidence was provided by both sides leading the court to discuss the point of DNA evidence.  Eric Barnes was unable to prove that the children were not biological, but the case highlighted analysis in this area of law.

Burden of Proof

56     There was some argument over whether there is a presumption of paternity in this case. Section 26 of the Family Law Act, S.B.C. 2011, c. 25, outlines a number of situations in which a male person is presumed to be a child's biological father. If the Family Law Act applies retrospectively for the purpose of interpreting Maymie Barnes' Will, then it would create a presumption of paternity.

57     Eric Barnes argued that "there is no presumption of paternity with respect to wills actions." He pointed to Lansing v. Richardson, 2002 BCSC 262, as authority. In that case, the plaintiff claimed that she was entitled to a share of the testator's estate pursuant to the Wills Variation Act because she was a biological daughter of the testator. However, the evidence of paternity was inconclusive. Hutchinson J. held at para. 18:

{C}{C}{C}Wills Variation Act paternity must be established before a legal claim can be recognised: the burden under the Wills Variation Act is on the plaintiff ... to establish paternity on a balance of probabilities, and under the Act there are no legislated presumptions, so the common law burden of proof applies.

58     In my view, Hutchinson J.'s ruling is best understood as an example of the general rule that the plaintiff has the burden of proving his or her case, or that the party advancing a claim has the burden of proving it.

59     In the present application, Eric, the applicant, occupies the position of a plaintiff and would have the burden of proving that Jaymie and Steven are not Kenneth Barnes' biological children. I find that it is unnecessary to determine whether the Family Law Act applies.

Discussion of the DNA Evidence

60     The DNA analysis results from Orchid Cellmark showed two non-matches out of eight genetic markers tested.

61     According to Dr. Desmarais' report, the paternity test that Orchid Cellmark conducted compares a child's DNA profile with that of an alleged father to check for evidence of genetic inheritance. [Tab 20, Exhibit A, p. 2]

62     Dr. Desmarais' report says that if the child and alleged father share an allele at each marker, then the alleged father cannot be excluded as the biological father. In that case, depending on circumstances, there will be a very high probability that the person is the child's biological father. On the other hand, if the child and alleged father do not share an allele at a given marker, then this non-match indicates a 0% probability of paternity. [Tab 20, Exhibit A, p. 2]

63     However, Dr. Desmarais says there must be at least two DNA non-matches between the alleged father and child to report a paternity exclusion, according to industry standards. [Tab 20, Exhibit A, p. 3]

64     Eric obtained samples of DNA purportedly of Kenneth Barnes from a hospital in Kitimat, B.C. Correspondence from the hospital indicates that the DNA samples were collected during three different surgical procedures that Kenneth Barnes underwent in 1987, 2003, and 2005. Jaymie sent her sample to Orchid Cellmark in accordance with a court order.

65     Eric's argument is that the test results show two non-matches, which according to industry standards is sufficient for a paternity exclusion. Dr. Desmarais' opinion was that the test results prove that Jaymie is not Kenneth Barnes' biological child.

66     Eric says that DNA testing is "notoriously reliable" and the test results easily meet the civil standard of proof on a balance of probabilities.

67     In response, Jaymie claims there are various weaknesses with this DNA evidence.

68     Jaymie points out that the Client Information and Consent form for Kenneth Barnes was not signed by someone with legal authority to sign -- for example, Kenneth's estate -- but rather by Eric's lawyer. The form asks two questions: "Did the donor of this specimen have a blood transfusion three months prior to the sample collection?" And, "Has the donor of this specimen ever had a bone marrow or a stem cell transplant?" Kenneth Barnes' Consent form does not answer those questions. Jaymie argues that it is possible that Kenneth did in fact have a blood transfusion three months prior to the samples being taken, since the samples were apparently taken during surgical procedures. She says it is possible that any such blood transfusion could have contaminated the samples and undermined the reliability of Orchid Cellmark's tests. On that point, Dr. Desmarais said whether Kenneth had a blood transfusion was not relevant in this case because her tests used tissue samples, not blood samples.

69     Jaymie also points out that correspondence with Orchid Cellmark indicates that Kenneth Barnes' DNA was "exceedingly difficult to work with", which provides further cause for concern over the reliability of the tests.

70     Jaymie raised a number of concerns over whether Dr. Desmarais' report is in compliance with the rules for expert reports and opinion evidence. She argued that the report does not make clear the extent to which Dr. Desmarais was herself involved in the work of collecting the DNA samples and performing the tests, as opposed to members of her staff. Jaymie argued that at least one person whose qualifications were not established participated in the testing process and signed the DNA test results.

71     Jaymie also argued that there are gaps in the chain of custody and the evidence regarding the identity of the DNA samples, which are supposed to have come from Kenneth Earle Barnes. She says the Consent form that was sent to the hospital in request of Kenneth's DNA samples merely identified the patient by his name, Kenneth Earle Barnes, and that he was a Caucasian male. There is no indication that the hospital was supplied with further information that would afford greater certainty with respect to the identity of the patient in question, such as government issue ID or a health card number.

72     Moreover, in Mr. Hutchison's cross-examination of Dr. Desmarais, he directed her attention to some articles that conclude that it is inadvisable to report a paternity exclusion with only two inconsistencies. For example, Mr. Hutchison read the following passage from an article by C.H. Brenner in the International Congress Series. The excerpt reads:

73     When asked if she agreed with that conclusion, Dr. Desmarais did not offer a clear answer one way or the other, admitting the possibility that mutations can affect the reliability of a test but not expressly disagreeing with the author that an exclusion on the basis of two inconsistencies can be poor policy.

74     Though I accept Eric's general point that DNA evidence is often highly reliable, the reliability of an analysis cannot be assumed but must be scrutinized by the court. DNA evidence is only as reliable as the processes behind it. In this case, there are genuine questions regarding the reliability of the steps leading to the DNA analysis and issues raised in the cross-examination of Dr. Desmarais.

75     Further, in my view the reliability of the DNA evidence must also be considered in light of the sworn evidence of Margaret Ruth Allen, Jaymie and Steven's mother, which states unequivocally that Kenneth Barnes is Jaymie and Steven's father, both of whom were born while she was married to and together with Kenneth Barnes.

76     Ms. Allen's affidavit and other evidence in supports sets up a conflict in the evidence. In light of that conflict and the concerns Jaymie has raised regarding the DNA evidence, I am not satisfied that Eric has established that Jaymie is not Kenneth Barnes' biological daughter. In my opinion, it would be inappropriate to be satisfied on that difficult question of fact based on the materials before me.

77     In the result, I cannot find that Eric has proven on the application that Jaymie is not Kenneth's biological child. In all of the circumstances, I decline to draw an adverse inference with respect to Steven.